Supreme Court Oral Argument in December, 2019

The U.S. Supreme Court heard oral arguments in five cases last week. The cases involved diverse areas of law ranging from intellectual property to immigration. However, a similar question united many of the cases — the extent of judicial review over executive branch decisions.

Below is a brief summary of the cases before the Court:

Guerrero-Lasprilla v. Barr: The immigration case centers on whether federal courtshave jurisdiction to review an agency’s denial of a request for equitable tolling made by someone subject to the “criminal alien bar” pursuant to 8 U.S.C. § 1252(a)(2)(C). The Fifth and Fourth Circuit have held that review of equitable tolling is a “question of fact” precluded from review under 8 U.S.C. § 1252(a)(2)(C). In contrast, the Ninth Circuit held that equitable tolling is a “mixed question,” i.e., “a question of law,” which falls under the jurisdictional savings clause under 8 U.S.C. § 1252(a)(2)(D ). The Supreme Court agreed to resolve the circuit split in granting certiorari on the following question: Whether a request for equitable tolling, as it applies to statutory motions to reopen, is judicially reviewable as a “question of law.”

Thryv, Inc. v. Click-To-Call Technologies, LP: The patent case involves two provisions of the America Invents Act (AIA). First, 35 U.S.C. § 315(b) provides that “[a]n inter partes review may not be instituted if the petition requesting the proceeding is filed more than 1 year after the date on which the petitioner … is served with a complaint alleging infringement of the patent.” Second, 35 U.S.C. § 314(d) provides that “[t]he determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” The question before the justices is whether 35 U.S.C. § 314(d) permits appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review upon finding that 35 U.S.C. § 315(b)’s time bar did not apply.

Maine Community Health Options v. United States: Unlike its predecessors, the Affordable Care Act (ACA) case does not challenge its validity. Rather, it centers on a provision that aimed to help insurers mitigate risk, specifically whether the government should be required to compensate them for losses. The specific questions before the justices are: (1) Whether—given the “cardinal rule” disfavoring implied repeals, which applies with “especial force” to appropriations acts and requires that repeal not to be found unless the later enactment is “irreconcilable” with the former—an appropriations rider whose text bars the agency’s use of certain funds to pay a statutory obligation, but does not repeal or amend the statutory obligation, and is thus not inconsistent with it, can nonetheless be held to impliedly repeal the obligation by elevating the perceived “intent” of the rider (drawn from unilluminating legislative history) above its text, and the text of the underlying statute; and (2) whether—when the federal government has an unambiguous statutory payment obligation, under a program involving reciprocal commitments by the government and a private company participating in the program—the presumption against retroactivity applies to the interpretation of an appropriations rider that is claimed to have impliedly repealed the government’s obligation.

Holguin-Hernandez v. United States: The case will resolve a circuit split over what a defendant must do to preserve an appellate challenge to the length of his/her sentence and if simply arguing for a lower one will suffice. The specific question is whether a formal objection after pronouncement of sentence is necessary to invoke appellate reasonableness review of the length of a defendant’s sentence.

Monasky v. Taglieri: The case centers on an international treaty aimed to address international child-custody cases. The Hague Convention on the Civil Aspects of International Child Abduction requires that any child wrongfully removed from her country of “habitual residence” be returned to that country. The issues before the Court are: (1) Whether a district court’s determination of habitual residence under the Hague Convention should be reviewed de novo, as seven circuits have held, under a deferential version of de novo review, as the U.S. Court of Appeals for the 1st Circuit has held, or under clear-error review, as the U.S. Courts of Appeals for the 4th and 6th Circuits have held; and (2) whether, when an infant is too young to acclimate to her surroundings, a subjective agreement between the infant‘s parents is necessary to establish her habitual residence under the Hague Convention.